Constitutional Position of Governor

• Article 163 (1) essentially limits any discretionary power of the Governor only to cases where the Constitution expressly specifies that the Governor must act on his own and apply an independent mind.
• Article 163 (2) says if any question arises with respect to whether a matter falls under Governors’ discretionary power or not, the decision of the Governor with regards to the question shall be final and anything done by the governor in his discretion will not be called into question.
• Article 163 (3) does not allow the courts to inquire into what advice was tendered by the Council of Ministers to the Governor.

Constitutional Discretion

The Governor has constitutional discretion in the following cases:

• Article 167: Governor can seek any information from the chief minister with regard to the administrative and legislative matters of the state.
• Article 200: A bill shall be presented to the Governor and the Governor shall declare either that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President.
• Article 356 empowers the Governor to recommend the imposition of President’s Rule in the state in case he feels that there is a breakdown of constitutional machinery in the state.
• Article 239 (2): While exercising his functions as the administrator of an adjoining Union Territory (in case of additional charge) independently of his council of Ministers.
• Determining the amount payable by the Government of Assam, Meghalaya, Tripura and Mizoram to an autonomous Tribal district council as royalty accruing from licenses for mineral exploration.

Situational discretion

• In addition to the above constitutional discretion (i.e., the express discretion mentioned in the constitution), the governor also has situational discretion (i.e., the hidden discretion derived from the exigencies of a prevailing political situation) in the following cases:
• Appointment of chief minister: As per Article 164, discretion is exercised in appointment of CM when a hung assembly turns up after the elections or when coalition partner suddenly withdraws the support from the ruling party.   
• Dissolution of the state legislative assembly:  As per Article 174, the Governor may Dissolve the Assembly if he/she is satisfied that the government has lost the majority in legislative assembly. 
• Dismissal of the council of ministers: Since Council of Ministers under Article 164 (2) is collectively responsible to the state legislative assembly hence if a ministry has lost confidence of the house but refuses to resign, in that case Governor can dissolve the Ministry.

Why in News?

The recent crisis in Rajasthan government has highlighted the role of the Governor in summoning the House of the State Assembly. The Rajasthan Governor has returned the proposal by the State Cabinet, seeking to convene a session of the Assembly, for the second time. This has raised legal questions on the powers of the Governor to summon a House.

Reference:

1. https://indianexpress.com/article/explained/rajasthan-govt-crisis-explained-when-can-governor-use-discretion-how-sc-ruled-6525917/